David A. Plymyer: Political, Social & Random Commentary

The consent decree with the DOJ is a glorified half-assed attempt to fix the BPD.

Anyone who has worked with me for any length of time knows that I have a special antipathy toward half-assed actions by government. The consent decree negotiated between the City of Baltimore and the United States Department of Justice (DOJ) over the management of the Baltimore Police Department (BPD) is a half-assed attempt to fix what ails the department, an imperfect and costly measure that only obliquely addresses the core of the problem with the BPD. Just because an action is expensive doesn’t mean it isn’t half-assed.

As the city and the DOJ cobble together a proposed team to monitor compliance with the consent decree, there are three things to keep in mind: The consent decree is adding another layer of bureaucracy, it will be extraordinarily expensive, and there is no guarantee of long-term success. There is in fact a fourth thing: The consent decree could have been avoided had the State of Maryland acted when it should have to assert control over what by the end of 2014 was obviously a rapidly deteriorating situation with the BPD.

By design, the monitoring team will not take control of the BPD; the team will generally hover above department management to make sure that those in control do what is necessary to reduce the incidence of unconstitutional police practices. It is a balancing act that, according to reports around the country, some monitors have done better than others.

Compliance monitoring is an intrusive process, demanding time and attention from police commanders – an inevitable distraction from the other tasks at hand. A lot of time (and money) will be spent gathering and processing information. In the end, there is no guarantee of success, in part because the monitoring team itself has no direct power to make the type of structural changes to departmental governance and labor relations necessary to effect long-term change to departmental culture, a point that I have made ad nauseam.

Another factor to consider is that, as far as I can tell, no other police department has had to go through the compliance process while also trying to cope with an out-of-control epidemic of violent crime of the type being experienced in Baltimore. The compliance process tends to slow down operational decisions within a department, and in the case of the consent decree in Baltimore will certainly moderate any thought by police commanders that more proactive police tactics are necessary. Risk-taking, and therefore innovation, will not be encouraged while the decree is in effect.

To be considered a success under the circumstances applicable to Baltimore, the consent decree cannot simply result in fewer violations of citizens’ constitutional rights. It must do so while allowing the BPD to take the actions necessary to help reduce the rate of violent crime. That is a big challenge.

Also, a comment as to police morale. I admit to some cynicism, having never participated in labor negotiations with a public safety union in which the union didn’t begin with the complaint that “morale is at an all-time low” because of actions management took or failed to take to support union members. On the other hand, I recognize the vital importance of having police officers believe that they have the support of police management when it comes to actions taken in the course of their duties, especially in a tough-to-police place like Baltimore.

A precondition to that type of trust is a very clear set of rules, and a very clear set of consequences. The commissioner must be able to say to the officers on the street:

“If you are doing your job, even if you make an honest mistake, I have your back. But if you intentionally break the rules – use force when it obviously isn’t necessary or deliberately violate someone’s 4th Amendment rights – you’re gone. And, supervisors, if you can’t keep your subordinates from breaking the rules, you’re gone, too.”

Will the Police Commissioner be able to establish that type of relationship with officers while the department is under the consent decree? I have my doubts. Not only will the monitor be looking over his shoulder, it also appears that the new City Solicitor will be doing so as well; there is no way of getting around the fact that the commissioner will be on a shorter leash when it comes to his responses to the conduct of his officers.

We will see how this affects the willingness of the commissioner to act decisively when controversies arise. I believe that the tightrope that a commissioner always must walk will get a lot higher and scarier under the consent decree.

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This costly and cumbersome process could have been avoided had former mayor Stephanie Rawlings-Blake turned to the State of Maryland for help, rather than put all her eggs in the federal basket. Of course, the State of Maryland, in the person of former governor Martin O’Malley and current governor Larry Hogan, would have had to be willing to do what was necessary. It would have required the mayor and governor working in concert to overcome the political hurdles.

What am I talking about? I am talking about the type of receivership that some states employ to take over failing law enforcement agencies and even entire municipalities. The irony is that the legal foundation for such action regarding the BPD already exists, because the General Assembly has retained legislative authority over the BPD since taking it back from the city in 1860. The notable exception to the plenary authority of the state lies in some aspects of labor relations with BPD officers, and the City Council has done its best to make a hash of that.

In one fell swoop, the General Assembly could have passed a law that effectively placed the BPD in receivership, and gave the governor the authority to appoint a board with complete power over the BPD, including the power to hire and fire the Police Commissioner. To be effective, any such law also would have had to exempt the BPD from the Law Enforcement Officers’ Bill of Rights and from city and state labor and personnel laws that currently render the department ungovernable, and have resulted in the slow, painful deterioration of the department. I have long believed that the core problem behind the long, painful deterioration of the BPD is the gradual dilution of the authority of the Police Commissioner to run the department.

One good commissioner, answerable only to a panel of bona fide experts and ultimately to the General Assembly (and allowed to build a management team of his or her own choosing) would be able to right the BPD ship more quickly and less expensively than will be possible under the consent decree. Just as importantly, the commissioner would be free from the second-guessing of federal monitors, and therefore able to adjust police tactics more rapidly as circumstances required.

The only reason that the “receivership” model is worth mentioning at this late date is that it still may turn out to be the best way forward. At some point the monitor will have to confront the barriers posed to compliance by the structural governance issues described above, and receivership will be the cleanest and most effective way to overcome those obstacles.

The consent decree sets ambitious goals and objectives, and there will be nothing half-hearted about the efforts of the monitoring team. Moreover, it appears that little effort or expense will be spared toward achieving compliance. At the end of the day, however, the consent decree is a glorified half-assed attempt to fix problems that the city and state have lacked the political will to fix in the most effective and efficient way. I hope it works, but half-assed measures seldom do.